ZUBER CROSSING LLC v. CLARK COUNTY BOARD OF REVISION (2025)

OPINION

{¶ 1} Plaintiff-Appellant Zuber Crossing, LLC, (“Zuber”) challenges the tax classification of three parcels of real property under R.C. 5713.041 as assigned by the Clark County Auditor for tax year 2020. The property—identified by the auditor's records as parcels 330-06-00006-100-024 (“-024”), 330-06-00006-100-021 (“-021”), and 320-02-00001-000-141 (“-141”)—were deemed “vacant commercial land” by the auditor based on the parcels’ location and their highest and best probable legal use. Zuber contends that based on the parcels’ principal, current use, i.e., farming hay, the land should have been classified as agricultural, not commercial.

{¶ 2} Under R.C. 5713.041, “[v]acant lots and tracts of land upon which there are no structures or improvements shall be classified in accordance with their location and their highest and best probable legal use.” The Clark County Board of Revision (“BOR”) and the Ohio Board of Tax Appeals (“BTA”) agreed with the auditor that the parcels were vacant tracts of land upon which there were no structures or improvements. They concluded that the parcels were properly classified in accordance with their location and their highest and best probable legal use, which in this case was commercial. In upholding the BOR's decision to maintain the auditor's classification of the parcels, the BTA concluded that the subject parcels were vacant commercial land given the parcels’ history, the sale of parcel -021 in 2021 for commercial use, and the parcels’ proximity to other commercial development. For the reasons outlined below, we affirm the decision of the BTA.

I. Background Facts and Procedural History

{¶ 3} Zuber was the owner of several parcels of land adjacent to a large commercial corridor in Clark County, Ohio. The three subject parcels were originally part of a larger 26-acre parcel, which was previously classified as residential but was essentially a hay field. Prior to 2015, the entire 26-acre parcel, owned by Zuber's predecessor, was periodically harvested for hay. In 2015, the 26-acre parcel was subdivided, and three of its smaller parcels were sold for commercial development, including the construction of Hobby Lobby, IHOP, and a dollar store. The three parcels at issue in this case remained as residual lots in that commercial area.

{¶ 4} Zuber, which identified as a farming business, acquired the subject property in December 2018 as the result of an exempt transaction following a related party transfer. In January 2019, Zuber entered into a farm hayfield lease agreement with John Van Sickle, who owns a 1% ownership interest in Zuber. Under the agreement, Zuber leased the residual parcels to Van Sickle for $2,500 annually, and Van Sickle used the land for cutting and baling hay. Van Sickle then personally transported the hay from the parcels to his private property and used it to feed his horses.

{¶ 5} According to Zuber, pursuant to the farm lease agreement, the three parcels at issue were used for agricultural purposes—growing, harvesting, and baling hay on all three parcels. Zuber stored a hay bine, rake, and hay baler on a fourth parcel that is not at issue in this case. Although the parcels were zoned commercial, they were never used for commercial purposes by Zuber.

{¶ 6} For the 2020 tax year, the Clark County Auditor classified all three parcels under land code “400” as “vacant commercial land.” Parcels -024, -021, and -141 were 5.62 acres, 1.16 acres, and 1.51 acres, respectively. Parcels -024 and -021 were located in the Clark-Shawnee Local School District, and parcel -141 was located in the Northeastern Local School District.

{¶ 7} As a result of the “vacant commercial land” classifications, Zuber filed complaints against the valuation of real property with the BOR, contesting the parcels’ classifications as “commercial.” Zuber argued that the parcels should have been classified as “agricultural” under R.C. 5713.041 and requested that the values of the parcels be reduced to $26,425 (-141), $20,300 (-021), and $98,350 (-024) in accordance with their use as vacant agricultural land. The Clark-Shawnee Local School District and the Northeastern Local School District filed countercomplaints, becoming parties to the case and requesting that the current commercial values of the parcels be maintained.

{¶ 8} In support of its complaints, Zuber contended that under Adm.Code 5703-25-10(B), the parcels were used for agricultural purposes, even though growing hay is not specifically listed as an agricultural purpose under the rule. The BOR disagreed with Zuber and denied its request to change the classification of the parcels to vacant agricultural land. The BOR determined that the parcels would remain classified as vacant commercial land because they were located in a “business cluster.” The BOR pointed out that according to R.C. 5713.041, “vacant lots and tracts of land upon which there are no structures or improvements shall be classified in accordance with their location and their highest and best probable legal use.” The BOR surmised that given the parcels’ location, the highest and best use was commercial.

{¶ 9} Zuber appealed the BOR's decisions to the BTA. The appeals were consolidated and heard by the BTA in April 2022. At the BTA hearing, Van Sickle testified, identifying himself as a 1% owner of Zuber and as the tenant leasing a total of four parcels under the farm lease agreement. He testified that he farmed the subject land, cutting the grass at least twice a year for hay bales for his own use. He acknowledged that in December 2021, parcel -021 (in the Clark-Shawnee Local School District) had been sold for commercial development and that all three parcels were currently zoned commercial as part of a “CO-2 Community Commercial District.” He recognized that the curb cutout and pavement improvement on parcel -141 had no agricultural purpose and were similar to another curb cutout that was created as an access point for entering and exiting the IHOP parking lot on the adjacent parcel. Van Sickle acknowledged that there was a large sign on parcel -141 that suggested the parcel was available for commercial development. He also stated that there were no vertical structures (i.e., buildings, fences) or other improvements on the subject parcels. He testified that he did not know if the property was farmed in the past but that he harvested approximately 440 bales of hay from the parcels in 2019; however, there was no testimony regarding the number of bales harvested per parcel in the 2020 tax year. Zuber presented no other evidence that the subject parcels were farmed before Van Sickle's 2019 lease.

{¶ 10} Both school districts opposed Zuber's appeal, asserting that the parcels were commercial plots of land being used only temporarily for cutting grass. The districts argued that pursuant to R.C. 5713.041, the parcels were to be classified according to their highest and best probable legal use—namely, commercial development based on their location and vacancy. They also argued that the farming lease between Zuber and Van Sickle was self-serving. Van Sickle was a 1% owner of Zuber, and Zuber used the lease to support its application for the Current Agricultural Use Value (“CAUV”) program. The school districts contended that though it was not the subject of this case, Zuber's failure to qualify for the CAUV program for the subject parcels was additional evidence that supported the BTA's finding that the parcels were not “agricultural.” Ohio's CAUV program is a special program that assesses agricultural property based on its use value, not its market value, to provide property tax relief. When a parcel of real property has less than 10 acres, there are limited circumstances in which the property may qualify for the CAUV program, including when the property produces an average gross income of at least $2,500 for the three years prior to the date of application. See R.C. 5713.30. Zuber applied for the CAUV program on the subject parcels in 2019, but its CAUV application was denied by the auditor.

{¶ 11} In July 2025, the BTA affirmed the BOR's decisions. It found that the BOR correctly maintained the classification of the three parcels as vacant commercial land. The BTA pointed out that the subject three parcels were small residual plots derived from a large parcel of land; that in 2015, three other parcels from the large original parcel were subdivided and sold for the commercial development of Hobby Lobby, IHOP, and a dollar store; that there was insufficient evidence that the subject parcels were farmed before the 2019 lease agreement between Zuber and Van Sickle; and that parcel -021 was sold without structures for commercial development in the amount of $550,000 in 2021. In rendering its decision, the BTA cited the language of R.C. 5713.041 relevant to vacant lots and concluded that the subject property's highest and best use was commercial development based on the parcels’ history, the sale of parcel -021 in 2021 for commercial development, and the parcels’ proximities to other commercial development.

{¶ 12} Zuber now appeals the BTA's decision.

II. Assignments of Error

{¶ 13} Zuber asserts the following two assignments of error:

The Board of Tax Appeals decision failed to classify the real estate at issue pursuant to O.R.C. § 5713.041 according to its current, actual use as vacant, agricultural land.

The Board of Tax Appeals decision ignores the plain language of O.R.C. § 5713.041.

Standard of Review

{¶ 14} In reviewing a BTA decision, we consider whether the decision was “reasonable and lawful.” Columbus City School Dist. Bd. of Edn. v. Zaino (2001), 90 Ohio St.3d 496, 497, 739 N.E.2d 783; see R.C. 5717.04. We are “neither a super Board of Tax Appeals nor a trier of fact de novo.” Westhaven, Inc. v. Wood Cty. Bd. of Revision, 81 Ohio St. 3d 67, 69-70, 689 N.E.2d 38 (1998), citing Youngstown Sheet & Tube Co. v. Mahoning Cty. Bd. of Revision, 66 Ohio St.2d 398, 400, 422 N.E.2d 846 (1981).

{¶ 15} “The BTA is responsible for determining factual issues and, if the record contains reliable and probative support for these BTA determinations,” we will affirm them. Am. Natl. Can Co. v. Tracy (1995), 72 Ohio St.3d 150, 152, 648 N.E.2d 483. “The BTA has discretion in admitting evidence, weighing it, and granting credibility to testimony.” Westhaven at 70, 689 N.E.2d 38, citing Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 74 Ohio St.3d 415, 416, 659 N.E.2d 1223 (1996); Vandalia-Butler City Sch. Dist. Bd. of Edn. v. Montgomery Cty. Bd. of Revision, 2005-Ohio-4385, ¶ 5, 106 Ohio St.3d 157, 833 N.E.2d 271, quoting Fawn Lake Apts. v. Cuyahoga Cty. Bd. of Revision, 85 Ohio St.3d 609, 613, 710 N.E.2d 681 (1999) (“[T]he BTA possesses wide discretion in evaluating the weight of the evidence and the credibility of the witnesses that come before it.”). “ ‘We will not reverse the BTA's determination on credibility of witnesses and weight given to their testimony unless we find an abuse of ․ discretion.’ ” Vandalia-Butler City Sch. Dist. Bd. of Edn. at ¶ 11, quoting Natl. Church Residence v. Licking Cty. Bd. of Revision, 73 Ohio St.3d 397, 398, 653 N.E.2d 240 (1995).

{¶ 16} While we “will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion,” the burden of proof rests on the taxpayer to show the manner and extent of the error in the final determination. Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001); Stds. Testing Laboratories, Inc. v. Zaino, 2003-Ohio-5804, ¶ 30, 100 Ohio St.3d 240, 797 N.E.2d 1278. The findings “are presumptively valid, absent a demonstration that those findings are clearly unreasonable or unlawful.” Nusseibeh v. Zaino, 2003-Ohio-855, ¶ 10, 98 Ohio St.3d 292, 784 N.E.2d 93.

Classification of Real Estate for Taxation

{¶ 17} Article XII, Section 2a(C)(1) of the Ohio Constitution authorizes the classification of real estate for taxation, stating that land and improvements in each taxing district shall be categorized as “residential and agricultural land and improvements” or “all other land and improvements.” Ohio Const., art. XII, § 2a(C)(1)(a) and (b). The land and improvements are placed into one of two classes solely for the purpose of separately reducing the taxes charged against all land and improvements. Id.

{¶ 18} Following the directive of Article XII, Section 2a(C), the Ohio legislature adopted R.C. 5713.041, which governs the classification of property for purposes of tax reduction and requires the county auditor to classify each parcel of real property according to its principal, current use. However, vacant lots and tracts of land upon which there are no structures or improvements are to be classified “in accordance with their location and their highest and best probable legal use.” R.C. 5713.041. Each year, the auditor shall reclassify each parcel “whose principal, current use has changed from the preceding year to a use appropriate to classification in the other class.” Id. Under R.C. 5715.19, a complainant may challenge any classification made pursuant to R.C. 5713.041.

{¶ 19} To facilitate our discussion, we consider Zuber's assignments of error together. Zuber first contends that the BTA erred in failing to classify the real estate according to its current, actual use as vacant agricultural land. It asserts that hay was the general crop grown for its agricultural use and that the only use and activity for the property was growing hay. Zuber also argues that the BTA failed to follow the plain language of R.C. 5713.041. Zuber claims that the BTA ignored the first sentence of R.C. 5713.041, which provides that “[e]ach separate parcel of real property shall be classified by the county auditor according to its principal, current use.” It asserts that because the principal, current use of the subject parcels in 2020 was for an agricultural purpose, the BTA failed to classify the real estate in accordance with R.C. 5713.041 by classifying the parcels as commercial.

{¶ 20} However, the statutory language of R.C. 5713.041 highlighted by Zuber does not stop there. Zuber's argument ignores the second sentence of R.C. 5713.041, which states that “[v]acant lots and tracts of land upon which there are no structures or improvements shall be classified in accordance with their location and their highest and best probable legal use.” The second sentence clearly provides that vacant lots and tracts of land without structures or improvements are to be classified based on their location and their highest and best probable legal use, not their principal, current use.

{¶ 21} Based on this language, the BTA found that the parcels were vacant commercial land, concluding that their highest and best use was commercial development based on the parcels’ history, the sale of parcel -021 in 2021 for commercial development, and the parcels’ proximities to other commercial development. Zuber contends, though, that because the parcels in question were being used for agricultural purposes and thus were not vacant, there was no reason for the BTA to even consider the second sentence of R.C. 5713.041 regarding vacant land. Zuber argues that the term “vacant” is undefined and that absent a statutory definition, the legislature intended the ordinary and plain use of the term. Zuber proffers its own definition of “vacant land.” It submits that “vacant land” is property that is not used, and because the subject parcels were used for an agricultural activity, they were neither unused nor vacant. According to Zuber, if there is use, the land cannot be vacant.

{¶ 22} In consideration of this argument, we look to Adm.Code 5703-25-10 as an extension of R.C. 5713.041 for further guidance regarding the classification of real property. Adm.Code 5703-25-10(A) reiterates the county auditor's obligation to specifically classify each parcel of taxable real property in the county into one of two categories: (1) residential and agricultural land and improvements or (2) all other taxable land and improvements, including commercial, industrial, mineral and public utility land and improvements. “Parcels, other than exempt property, that are vacant (no structures or improvements present) shall be coded 100, 200, 300, 400 or 500 depending on the respective class unless part of an existing unit.” Adm.Code 5703-25-10(C). Under this rule, land can be classified as “100 Agricultural vacant land” or “400 Commercial - vacant land.” Id.

{¶ 23} Adm.Code 5703-25-10(B) reinforces that “[e]ach separate parcel of real property with improvements shall be classified according to its principal and current use, and each vacant parcel of land shall be classified in accordance with its location and its highest and best probable legal use.” In other words, parcels of property with improvements are to be classified according to their principal and current use, whereas vacant parcels are to be classified according to their location and highest and best probable legal use. Taken as a whole, this rule makes clear that “vacant” parcels include those that do not contain any improvements and that a “vacant” parcel can be classified as either vacant agricultural land or vacant commercial land. We do not agree with Zuber that the meaning of “vacant” is ambiguous or that “vacant” means “unused” land.

{¶ 24} Based on our review, we agree with the BTA that the subject parcels were “vacant” land because they contained no structures or improvements. As such, the plain language of R.C. 5713.041, in combination with Adm.Code 5703-25-10(B), required the parcels to be classified in accordance with their location and highest and best probable legal use.

{¶ 25} The record supports the BTA's reasoning that the parcels at issue were to be classified as vacant commercial land (their highest and best probable legal use). The parcels were residuals from a larger parcel that had been subdivided and partially sold for commercial development. The parcels were zoned commercial and were in a highly commercialized retail area. Since this dispute arose, a large sign had been placed on parcel -141 (which had a curb cutout and pavement improvement) suggesting that the parcel was available for commercial development. Parcel -021 was, in fact, sold for commercial development. While this sale occurred in 2021 after the 2020 tax year, the nature of the sale suggests that the auditor's determination in 2020—that the land's highest and best probable legal use was vacant commercial land—was reasonable. Further, there was no evidence that the parcels were farmed before Van Sickle's 2019 lease. We cannot say that agricultural vacant land was the parcels’ highest and best probable legal use merely because Van Sickle mowed the grass twice a year for hay baling and transported the hay to his own property to feed his horses.

{¶ 26} Under these circumstances, Zuber did not meet its burden to show the manner and extent of the error in the BTA's final determination. We cannot say that the BTA rendered a clearly unreasonable and unlawful decision by upholding the BOR's decision maintaining the auditor's classification of the parcels as vacant commercial land.

{¶ 27} Zuber's assignments of error are overruled.

III. Conclusion

{¶ 28} Having overruled Zuber's assignments of error, the BTA's decision is affirmed.

HUFFMAN, J.

EPLEY, P.J., and HANSEMAN, J., concur.